[Senate Hearing 117-885]
[From the U.S. Government Publishing Office]
S. Hrg. 117-885
REMOVING BARRIERS TO LEGAL
MIGRATION TO STRENGTHEN OUR
COMMUNITIES AND ECONOMY
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON INTELLECTUAL PROPERTY
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
MARCH 15, 2022
__________
Serial No. J-117-55
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
56-622 WASHINGTON : 2025
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COMMITTEE ON THE JUDICIARY
RICHARD J. DURBIN, Illinois, Chair
PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa, Ranking
DIANNE FEINSTEIN, California Member
SHELDON WHITEHOUSE, Rhode Island LINDSEY O. GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE K. HIRONO, Hawaii BEN SASSE, Nebraska
CORY A. BOOKER, New Jersey JOSH HAWLEY, Missouri
ALEX PADILLA, California TOM COTTON, Arkansas
JON OSSOFF, Georgia JOHN KENNEDY, Louisiana
THOM TILLIS, North Carolina
MARSHA BLACKBURN, Tennessee
Joseph Zogby, Chief Counsel and Staff Director
Kolan L. Davis, Republican Chief Counsel and Staff Director
SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP
AND BORDER SAFETY
ALEX PADILLA, California, Chair
DIANNE FEINSTEIN, California JOHN CORNYN, Texas, Ranking Member
AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina
CHRISTOPHER A. COONS, Delaware TED CRUZ, Texas
RICHARD BLUMENTHAL, Connecticut TOM COTTON, Arkansas
MAZIE K. HIRONO, Hawaii JOHN KENNEDY, Louisiana
CORY A. BOOKER, New Jersey THOM TILLIS, North Carolina
MARSHA BLACKBURN, Tennessee
Alyson Sincavage, Majority Chief Counsel
Ryan Raybould, Minority Chief Counsel
C O N T E N T S
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OPENING STATEMENTS
Page
Padilla, Hon. Alex............................................... 1
Cornyn, Hon. John................................................ 3
Durbin, Hon. Richard J., U.S. Senator from Illinois.............. 6
WITNESSES
Legomsky, Stephen H.............................................. 9
Prepared statement........................................... 36
Melmed, Lynden D................................................. 13
Prepared statement........................................... 49
Rajakumar, Athulya............................................... 11
Prepared statement........................................... 55
Responses to written questions............................... 62
APPENDIX
Items submitted for the record................................... 35
REMOVING BARRIERS TO LEGAL
MIGRATION TO STRENGTHEN OUR
COMMUNITIES AND ECONOMY
----------
TUESDAY, MARCH 15, 2022
United States Senate,
Subcommittee on Immigration, Citizenship,
and Border Security,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice at 2:02 p.m., in
Room 226, Dirksen Senate Office Building, Hon. Alex Padilla,
Chair of the Subcommittee, presiding.
Present: Senators Padilla [presiding], Klobuchar,
Blumenthal, Cornyn, Tillis, and Hirono.
Also present: Senator Durbin.
OPENING STATEMENT OF HON. ALEX PADILLA,
A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Chair Padilla. Good afternoon, everybody. I call to order
this hearing of the Senate Judiciary Subcommittee on
Immigration, Citizenship, and Border Safety. This hearing will
come to order, and I do thank you all for joining us today.
This is a hearing to explore some critical and timely issues,
and I want to thank--start by thanking our Ranking Member,
Senator Cornyn, and his staff for once again working so
collaboratively with me and my team in putting this hearing
together. That's not always a given around here. I want to make
sure, Senator Cornyn, you know how much I appreciate your
partnership, both on this Subcommittee and in our other work
together.
We're here today to examine the challenges that many
immigrants face in seeking lawful permanent resident status.
For more than 200 years, people have come to the United States
from around the world to seek refuge, pursue opportunity, and
live the American dream. For generations, the dreams and hard
work of immigrants have fueled our economy, sparked
groundbreaking scientific discoveries, enhanced our national
security, and strengthened our communities. That's why Congress
has routinely created pathways for people around the world to
live and work in this country, and to bring their families
along with them.
The immigration system that Congress designed to achieve
those critical goals has failed to keep up with our needs in
the 21st century. In this hearing, we'll hear testimony on
barriers to the legal migration that routinely separate
families across international borders for years. Visa caps that
keep employers from expanding their businesses and hold back
the U.S. economy, and arbitrary cutoffs for legal status that
force children of visa holders to leave the only country
they've ever known when they age out of their parents' visas.
The gap between our country's needs and realities of our
broken immigration system should come as no surprise. After
all, Congress hasn't passed a significant update to our
immigration policy in more than three decades. Think about
that. We're still relying on an immigration framework that was
last overhauled before the launch of the World Wide Web.
This has had devastating consequences for hardworking
families and the economy. Currently, there's a backlog of 1.4
million people who are eligible for employment-based visas.
Employment-based visas allow participating immigrants to bring
extraordinary skills to our workforce, start new businesses,
create new jobs in rural areas, and to help address worker
shortages in industries like healthcare.
Only 140,000 of these individuals can obtain visas every
year. Because the spouses and children who accompany them count
against a total, far fewer than 70,000 visas actually go to
eligible workers. Hundreds of thousands of others are left in
limbo, restricted by a temporary visa or turned away from their
dreams, and they're kept from realizing their potential.
Our immigration laws also cause years of delay for millions
of family members who are otherwise eligible to join their
relatives in the United States. The annual cap on family based
visas is far lower than global demand, with about 7.7 million
people stuck in our backlog. That means millions of parents and
children, sisters and brothers, and married couples face years
or even decades of separation. Wait times are further
exacerbated by strict limits on how many visas can go to an
individual country, and the term ``wait time'' for many is
actually a cruel misnomer. For applicants from some countries,
the ``wait time'' is literally longer than any human's life
expectancy.
It's past time to update our immigration laws to reflect
the current needs of our Nation. I thank my colleagues who are
leading commonsense bills to address these unnecessary barriers
to legal migration. For instance, Senator Durbin, Chair of the
Judiciary Committee, has the RELIEF Act, which would increase
the availability of visas to reunite families. Senator
Menendez's U.S. Citizenship Act would eliminate per-country
caps, increase the number of green cards through the diversity
visa program, and recapture millions of previously unused visas
to reduce green card backlogs. Representative Lofgren's LIKE
Act would create a pathway for immigrant entrepreneurs to
strengthen our economy. I've worked across the aisle with
Senator Paul to introduce the America's Children Act, which
would create green card opportunities for children who grew up
in the United States but are now aging out of their parents'
temporary visas.
The stakes of this work could not be higher. Professor
Stephen Legomsky's joining us today to testify about how our
outdated immigration laws are harming our communities and our
economy. Mr. Melmed will focus on barriers to skills-based
migration, and Athulya Rajakumar, a documented DREAMer and
aspiring journalist, is here to share the story of her family's
struggle through years of immigration limbo, which contributed
to her brother's tragic death.
Athulya, my heart goes out to you and your family, and I
appreciate you being here and sharing your story. I'm outraged
by this broken system that you, your brother, and thousands of
documented DREAMers have had to face. We've organized this
hearing today because we cannot allow the inaction of Congress
to continue to cause this suffering.
The United States was founded as a nation of immigrants,
and it's time to honor that spirit once again. I know I'm here
to put in the work. I'm ready to have constructive, productive
conversations with our Republican colleagues. These issues need
to be more than just bipartisan in spirit. We must act. We must
fix this outdated system, and I know we can do it if we work
together. Now, I want to recognize Ranking Member Cornyn for
his opening remarks before we get to our witnesses in the
balance of today's hearing. Senator Cornyn.
STATEMENT OF HON. JOHN CORNYN,
A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. Thank you, Mr. Chairman. Thank you for
holding this hearing on barriers to legal immigration. We've
long known the vital contribution immigrant workers make to our
economic growth and to our national fabric. Last year in this
Subcommittee, we heard testimony that foreign-born workers
often bring special skill sets to the United States, and that
U.S. economic growth over the last three decades would have
been significantly lower in their absence.
That's certainly the case in my home State of Texas, where
we've benefited from the contributions of foreign-born workers
in virtually every industry. Just as one example, it's been
estimated that 30 percent of practicing physicians in the
Dallas-Fort Worth area are foreign born. Thirty percent.
Unfortunately, our current immigration system fails to harness
the full economic potential of immigrant workers. The
Congressional Research Service recently estimated that, without
significant change, the employment-based green card backlog
could exceed two million by the year 2030.
Indian nationals have been hit especially hard, because our
system's per-country caps do not allow them to receive more
than 7 percent of the available employment-based visas in any
given year. To make matters worse, due to processing
inefficiencies attributable in part to USCIS's paper-based
system and to the closures of many of our consulates, we failed
to issue as many as 92,000 employment-based visas in the height
of the pandemic.
Senator Tillis has recently proposed the Preserving
Employment Visas Act, which would recapture these unused visas
and allow us to use them to reduce the employment-based green
card backlog. I'm proud to be a cosponsor of that legislation,
along with another Member of this Subcommittee, Senator Coons.
I'd also like to highlight my work with the Chairman of the
full Committee, Senator Durbin, on the Healthcare Workforce
Resilience Act, which would recapture as many as 40,000 unused
employment-based green cards, which would be used--issued to
doctors and nurses. Many foreign physicians and nurses work on
H-1B visas while waiting for a green card, and our legislation
would help reduce that backlog.
Finally, I'm a proud cosponsor of legislation last Congress
that would've eliminated the per-country caps for employment-
based immigrants, ensuring that countries like India do not
face disproportionately long backlogs. I highlight these bills
to demonstrate the strong appetite for immigration reform on
this side of the aisle.
Unfortunately, the opportunity to act on these and other
productive pieces of legislation has been completely derailed
because of the current humanitarian crisis at our southern
border. Since President Biden took office, we've seen
historically high levels of illegal border crossings along our
southwest border. Last month alone, Customs and Border
Protection recorded 164,000-plus encounters along the southwest
border, the highest total in more than 20 years, and that's
just for last month. We know that as the weather warms up in
the springtime, those numbers will continue to grow and grow.
In spite of this, the administration doesn't seem to really
care or take the problem of this crisis at the border
seriously. Rather than deter would-be migrants with weak asylum
claims from taking the dangerous journey to the southwest
border, the administration has rolled out the welcome mat and
created new incentives to illegally immigrate to the United
States. For example, the Department of Homeland Security has
adopted a policy of paroling migrants into the United States
without first issuing them a notice to appear before an
immigration judge, the document that formally commences
immigration court proceedings.
Unsurprisingly, a large percentage of these migrants don't
show up and don't turn themselves in to the nearest ICE office
when they reach their final destination in the United States.
The Biden administration has also re-implemented and updated
its Central American Minors program, and now allows migrants
with asylum claims that were filed on or before May 15th, 2021,
to petition to have their children brought to the United
States.
Two months ago, Senate Democrats asked Secretary of
Homeland Security Mayorkas and Secretary of State Blinken to
re-designate El Salvador, Honduras, and Guatemala, for
temporary protected status. This would give migrants with
nonexistent asylum claims another avenue for lawful status in
the United States, and one that is unlikely to be truly
temporary.
Senator Sinema, Democrat from Arizona, another border
State, and I have introduced narrow, targeted bipartisan
legislation that would help us resolve the crisis on the
southwest border. It would treat migrants fairly and deter
those with weak asylum claims from attempting to cross in the
first place. I'm pleased that Senator Tillis and Senator Hassan
have joined us as bipartisan cosponsors.
Democratic leadership could demonstrate that they were
serious by taking up our Bipartisan Border Solutions Act as a
first step to get the crisis on our southwest border under some
semblance of control. There was a brief glimmer of hope last
year when Senator Durbin, the Chairman of the Full Judiciary
Committee, convened a working group to explore bipartisan
immigration reform options. But rather than engage in a
constructive process that actually produced solutions, Senator
Durbin prematurely declared those talks a failure, claiming
that Republicans made unreasonable demands. He advocated for a
quixotic, partisan, go-it-alone approach that would create a
pathway to citizenship for 6-to-8 million illegal immigrants.
This, of course, came without any accompanying measures to
increase border security or interior enforcement to ensure that
the undocumented population doesn't accrue yet again.
Thankfully, the Senate Parliamentarian ruled against this
effort to go it alone and use the reconciliation process.
Unfortunately, in taking this partisan tack, our Democratic
colleagues have poisoned the well when it comes to bipartisan
immigration reform. It will be difficult to rebuild the trust
with one another in order to come up with bipartisan solutions.
Having said that, I am willing to work with anyone,
Republican or Democrat, to secure our borders and make it
easier for legal immigrants to contribute to the American
economy. Our best chance of updating our immigration laws lies
in putting in the hard work necessary to craft consensus
bipartisan legislation that make more targeted choices. As long
as our colleagues across the aisle insist on a purely partisan
measure with massive scope, the Senate will do what we have
done for almost the entire time I've been here in the Senate,
which is never fail to fail.
I'm looking forward to the testimony today about the
changes that would be suggested here to harness the full
economic potential of our immigration system. I know that while
we don't agree on every proposal today, Mr. Chairman, I hope we
can continue to find common ground where we can. Mr. Chairman,
may I say a word about Mr. Melmed, my--the third witness.
Lynden Melmed is the third witness here today and a partner
in the Berry Appleman & Leiden law firm here in DC. Before
joining that firm, Lynden served as chief counsel of the U.S.
Customs and Immigration Service, the agency's highest ranking
legal position. As chief counsel of USCIS, Lynden managed a
legal team of about 130 lawyers, and was a key advisor to
senior leadership within USCIS, DHS, and the White House and
other Federal agencies on all aspects of immigration law.
Before he--before his role in USCIS, Lynden served as my
immigration counsel when I was Chairman of this Subcommittee,
and I value his counsel and advice on all matters pertaining to
the subject matter of today's hearing. It's good to have you
back again with us here, Lynden, in the Judiciary Committee.
I'm sure the entire Subcommittee will benefit from your
excellent counsel as I have in the past. Thank you very much.
Chair Padilla. Thank you, Senator Cornyn. Before
introducing the other two witnesses, I want to recognize
Chairman Durbin for some remarks. Even before that, Senator
Durbin, a couple comments on Senator Cornyn's remarks. I just
want to make sure that we're not conflating two different
dynamics here.
Someone coming to the United States seeking refuge or
asylum is very different than the case, that we're going to be
hearing a perfect example of it today, of a young person who is
here, who has been here lawfully as a child of an immigrant
whose--has a lawful, employment-based visa and stuck waiting,
stuck in a backlog so long that they age out of those
protections with no means of changing status. I just want to
make sure we don't conflate very different scenarios.
As it pertains to the asylum system, it's important to
recognize the asylum system is indeed a legal migration
pathway. People who come to our border fleeing persecution and
seeking protection have a legal right to ask for asylum. It may
not be guaranteed, but they have a right to ask for it. Those
who are able to establish a valid claim are allowed to stay
here permanently and seek a green card after a year.
There is a notion that immigrants are misusing the asylum
system by filing false claims. The fact is false claims made by
asylum applicants are extremely uncommon. In fact, 99 percent
of all asylum seekers do appear for their hearing. Finally,
expanding and increasing legal immigration avenues for family
reunification, employment opportunities, and humanitarian
relief would help disincentivize unauthorized immigration. I
think it just continues to underscore the complexities of our
immigration system and our need for modernization. With that,
Senator Durbin.
STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS,
Chair Durbin. Thank you, Mr. Chairman. Thank you to the
witnesses for being here today. Is there anyone in America who
is not following what's going on in Ukraine? Turn on the
television, every single day, for another heartbreaking scene.
You wonder about those poor people. Those families at the train
station or the mother holding the baby that's kissing her
husband goodbye and wonders if she'll ever see him again. She
takes that train, most times, to Poland. An interesting thing
has happened. Poland now has received about 1 1/2 million
refugees from Ukraine.
We estimate that 3 million Ukrainians have left their
country, 3 million refugees. Polish Ambassador spoke to us last
week in a meeting, and he said, ``I hope you've noticed
something. We don't have any refugee camps in Poland. The
people who get off that train are greeted by Polish families
who bring them into their homes. They welcome these refugees.''
They're not the only country in Europe that does that. There
are only 5 million people living in Ireland. They've agreed to
accept 100,000 Ukrainian refugees.
You look at the United States of America, and you wonder,
how would we have reacted to this situation? Three million
displaced people in Ukraine out of a 40 million population.
What is a comparable number in the United States? It's the
State of Texas. Twenty-nine million people, if they were, in a
matter of 3 weeks, displaced from their home and sent out
around the Nation, around the region, trying to find a place to
call home, would America respond? Would we open our doors to
those refugees?
I just suspect it's possible that many of the European
countries that are accepting Ukrainians are accepting people
who, by and large, look like them. By and large, have their
same types of religion and culture and background. It's a fact
of life that, when it comes to choosing refugees who are
acceptable, we are much more caring when they look like our
own. When they don't, we're not as welcoming.
I hope that the United States will show, not just by
appropriated funds, but by appropriated values, that we share
the feeling of the people of Poland and others. Not just for
these refugees, but for other refugees.
There are some among us who just say, flat out, ``Make no
mistake. I don't want a single one coming into this country. I
don't want another immigrant, not one. If you're going to come
up with ideas on how to bring more immigrants into this
country, count me out.'' We have colleagues just like that. I
know, I've spoken to them. I've listened to them. I've watched
them over the years. Colleagues who never vote for an
immigration bill, would not even consider it. I just don't
understand that. We are a nation of immigrants. My mother was
an immigrant. I'm proud of that fact. Her naturalization
certificate sits behind my desk because it defines who I am and
where I come from. We haven't updated this legal immigration
system in America in, now, 32 years. Thirty-two years.
In 2013, we tried to change it. I worked with a group of
eight, led by John McCain and Schumer and Menendez and Bennett
and Graham--I'm missing some here along the way. Senator Flake.
We passed a bipartisan comprehensive immigration bill. Some
Republicans wouldn't even vote for that, even though it
contained more money for border security than we have ever
appropriated. The bill passed the Senate 68-to-32. It provided
a path to citizenship for millions of immigrants with deep
roots in this country. I thought it was the answer. Republicans
wouldn't consider it in the House, wouldn't even take it up. It
would've established new protections for American workers,
would've cleared the green card backlog, which is one of the
reasons we're here today, and it would substantially increase
future legal immigration. As I said, it wasn't taken up in the
House. Then came the Trump administration.
We saw unprecedented attacks on legal immigrants, the
Muslim ban, the lowest refugee admissions targets for the
United States of America in decades. You know what inspired us
to create refugee admission targets in the United States? Our
reflection on what we did during World War II, turning away the
SS St. Louis, with hundreds of passengers, Jewish people,
trying to escape the Holocaust in Europe. We turned them away.
Many of them went back to Europe to die in the Holocaust.
After that experience, we said as a Nation, ``That isn't
what America's going to be in the future. Both parties are
going to stand up and speak up for refugees in admissions into
this country.'' We did it, consistently, until the last
President.
Last year, I convened a bipartisan immigration negotiation
that dragged on for months. Senator Cornyn was speaking to it
when I entered the room, so I didn't hear all he said, John, so
I won't dwell on it. I was disappointed, because there were
just people who were sitting at that table who wanted not one
more immigrant. Maybe it's partisan on my part, maybe it is,
but I believe we're a nation of immigrants and we would be
stronger if we had them.
One of those significant challenges that the Chairman of
this Subcommittee just addressed, that's the lack of green
cards. The numbers are stunning. Four million future Americans,
4 million, are stuck in the family green card backlog overseas.
Many of them are family members who want to be reunited with
their families. I thought we were for family values. We changed
that family migration into something called chain migration,
and many of it--many people among the Senate Membership look on
it in a negative way.
With 4 million family members waiting to be reunited with
their families overseas, how many family green cards do we
issue each year? Two hundred twenty-six thousand. Do the math.
More than 875,000 immigrants are stuck in the employment green
card backlog in the United States. Eight hundred seventy-five
thousand. We issue 140,000 employment green cards per year.
One of the most heartbreaking consequences of the green
card backlog is its impact on innocent children, and I know
we're going to hear about that today. They've grown up in
America. They believe this is their home. They want to be part
of its future. They're college students. They're bright and
ready to go. Current law strips them of their legal status when
they reach the age of 21. As a result, they are, quote, ``aging
out'' at 21.
Athulya Rajakumar, and forgive me if I didn't pronounce
your name correctly, one of our witnesses, is just such a
person. Remarkable persistence despite tremendous obstacles.
We'd be a better nation if you were a citizen here, and I hope
we can make that happen. That's why I'm proud to sponsor
Chairman Padilla's bipartisan bill, America's Children Act,
which would provide a path to citizenship to you.
I also commend my House colleagues for including a path to
citizenship for so-called documented DREAMers. I introduced the
DREAM Act 21 years ago in this room. Before that, if you asked
people, ``Who are the DREAMers?'' they'd say, ``They're a
British rock group, weren't they?'' No. They're a lot of young
people who, for over 2 decades, have been looking for a chance.
I've also introduced the RELIEF Act, which is based on the
bipartisan 2013 comprehensive immigration bill. It will lift
the arbitrary country caps that limit the number of green cards
that go to immigrants for any single country in a given year.
We need to help everyone stuck in a green card backlog, which
is why this act would clear the backlog in 5 years. Not 20, 5
years. Keep American families together.
Also working closely with the House Judiciary Committee on
the legal immigration reforms in Build Back Better. I hope the
Senate will pass some measure like that this year. Though we
have our disagreements, I want to thank Senator Cornyn for
partnering with me to introduce the bipartisan Healthcare
Workforce Resiliency Act. John, I don't know if you checked the
cosponsorship lately. We're doing pretty good. I think we've
got a chance to pass that. Addresses the plight of immigrant
doctors and nurses stuck in the green card backlog.
Strengthening our immigration system will make us a better
country. Opening our doors to refugees will remind us of the
goodness of the American people. Let's get the job done. Thank
you, Chairman Padilla.
Chair Padilla. Thank you, Senator Durbin. I want to lay out
the mechanics for the rest of today's hearing. After I
introduce and swear in the witnesses, they'll each have 5
minutes to make their opening remarks. We'll then begin our
first round of questions, and each Senator will have 5 minutes.
I ask Senators to please try to remain within your allotted
time. Now, our witnesses.
Let's start with Professor Legomsky. Professor Stephen
Legomsky is the John S. Lehmann University Professor Emeritus
at the Washington University School of Law in St. Louis.
Professor Legomsky took a leave of absence from 2011 to 2013 to
serve as chief counsel of U.S. Citizenship and Immigration
Services, the immigration services agency in the U.S.
Department of Homeland Security. After retiring in July 2015,
he returned to Washington to serve as senior counselor to
Secretary of Homeland Security Jeh Johnson. He has served as a
member of President Biden's transition team, and as a
consultant to the transition teams of Presidents Clinton and
Obama, the first President Bush's Commissioner of Immigration,
the U.N. High Commissioner for Refugees in Geneva, and several
foreign governments on immigration and refugee policies. He has
testified before Congress many times while in the private
sector, and his book, Immigration and Refugee Law and Policy,
has been the required text at 193 law schools.
Today we also welcome Athulya Rajakumar. Ms. Rajakumar is a
23-year-old recent graduate of the University of Texas at
Austin, from the Moody College of Communication. Originally
from India, she came to the United States when she was 4 years
old, as a dependent of her mother's visa. Ms. Rajakumar grew up
in Seattle, Washington and now resides in Dallas, Texas. She
has completed her entire education from 1st grade to her
bachelor's degree in the United States.
Senator Cornyn has already introduced Mr. Melmed, so with
that, I would ask each of the witnesses to please rise and be
sworn in.
[Witnesses are sworn in.]
Thank you. You may be seated. Let the record reflect each
of the witnesses responded in the affirmative. With that,
Professor Legomsky. Let's go ahead and proceed with your
opening statement.
STATEMENT OF STEPHEN H. LEGOMSKY,
PROFESSOR EMERITUS, WASHINGTON UNIVERSITY
SCHOOL OF LAW, ST. LOUIS, MISSOURI
Professor Legomsky. Thank you for the privilege of
testifying before you today. It's now been more than 30 years,
as several of you have now said, since Congress has last
meaningfully updated the numerical limits on legal immigration.
As you know, massive backlogs have now accumulated. Those
backlogs have needlessly diminished so many of the benefits
that immigrants bring us. My view, for all the reasons
contained in my written statement, is that the U.S. could and
should significantly increase the number of immigrants whom we
admit each year.
Whether or not one shares that view, I think there are four
things that Congress can do now that would not increase total
immigration, but would put a serious dent in the backlog and
shorten the long waiting periods faced by qualified immigrants.
These four measures don't change any of the individual criteria
for admission as a lawful permanent resident, an LPR. They
would, however, simply allow those immigrants who eventually
will be admitted anyway to be admitted sooner rather than
later. They would affect the timing of the given person's
admission, but not the overall long-term numbers.
As you know, the statute contains formulas for computing
the annual worldwide caps on family sponsored and employment-
based immigrants. My first set of proposals calls for three
changes to those formulas. Increasing the base numbers of
480,000 and 140,000 respectively, recapturing all the visas
that Congress has authorized but that have gone unused because
of bureaucratic delays since the start of the current system in
1992, and, in the family sponsored program, repealing the
present deduction for the previous year's admission of
immediate relatives.
Second, one of the family sponsored subcategories consists
of the so-called 2As. These are the spouses and the unmarried,
under age 21 children of LPRs. At the moment, except for the
across-the-board administrative processing delays, there's
actually no waiting period for 2As. It hasn't always been that
way, and there's no guarantee it won't become that way again.
At times, 2As have had to wait as much as 5 1/2 years to
join their nuclear families in the U.S.; even longer if they
are from Mexico. This is an especially serious problem, because
the petitions are usually filed soon after the sponsoring LPR
is married or have children overseas. To be clear, for the most
part, the people we're talking about here are newlyweds being
separated for the first several years of their marriage, and
parents being separated from their newborn babies for the first
several years of the child's life. My second proposal,
therefore, is to reclassify the 2As as immediate relatives,
thus freeing them from the numerical limits that have given
rise to these long delays. The humanitarian concerns are
obvious, and my written statement contains several additional
practical reasons to address these separations.
Third, the current law also limits the number of qualified
immigrants who may be admitted from any one country in a single
year, as has been noted. The current per-country caps have
produced extreme results, including very long waiting periods
for Mexican and Filipino immigrants in the family category, and
for Chinese and Indian immigrants in the employment category.
My third proposal doesn't require repealing these per-country
caps, although I personally would be in favor of doing so. It
does call for raising them.
My fourth proposal concerns lawfully admitted temporary
workers, mainly the H-1Bs, whose petitions for employment-based
LPR status have been approved, but who have been wait-listed
for actual adjustment of status. This proposal would allow them
to file their adjustment applications a certain amount of time
in advance, to give UCSIS a head start on the processing.
The fifth and final proposal, unlike the first four, would
extend eligibility to some individuals who are currently
blocked. It would repeal the various provisions that bar people
from the U.S. for 3 years, for 10 years, or in some cases, for
life because of past--not current, but past--unlawful presence.
My own view is that the harshness of these bars is inherently
disproportionate to the offenses that they mean to punish.
The most severe consequences of these provisions fall on
those immigrants who have been unlawfully present at one time
or another, but who now satisfy all of Congress's substantive
eligibility requirements for immigrating to the United States.
By that I mean, they fall within one of the categories
established by Congress: family, employment, etc. They don't
fall with any inadmissibility grounds created by Congress, and
they have waited their turn in line to the point where their
priority dates are now current. For them, these bars create a
procedural Catch-22.
As my written statement explains, and I'll be happy to
elaborate further if there's interest, they meet all these
substantive requirements, but there's simply no place they can
go to actually file their applications. For various reasons,
they can't apply overseas. For various other reasons, they
can't apply here in the United States as well. Again, I will be
happy to elaborate. Thank you all once more.
[The prepared statement of Professor Legomsky appears as a
submission for the record.]
Chair Padilla. Thank you, Professor Legomsky. I turn to Ms.
Rajakumar for your testimony.
STATEMENT OF ATHULYA RAJAKUMAR,
GRADUATE OF THE UNIVERSITY OF TEXAS
AT AUSTIN, DALLAS, TEXAS
Ms. Rajakumar. Chairman Padilla, Ranking Member Cornyn, and
Members of the Subcommittee, thank you for the opportunity to
share my story. My name is Athulya Rajakumar. I'm a recent
graduate of the University of Texas at Austin. I'm also a
member of Improve the Dream, a youth-led organization that
supports and advocates for over 200,000 young immigrants who
grow up in the United States with a documented status but face
self-deportation after aging out of the immigration system.
I am a documented DREAMer. I was born in India, and when I
was four and my brother was six, my mother left an abusive
marriage in search of a better life for us. After graduating
from San Jose State University, she secured a full-time job and
was able to acquire a work visa. Eventually, in 2012, she was
able to apply for her green card with me and my brother as her
dependents. After nearly a decade in the green card backlog, I
aged out in January 2020, when I turned 21.
My single mother worked hard to support me and my brother
on her own. Things were hard, but still, I remember making
happy memories while building our new life, like eating red,
white, and blue popsicles on 4th of July, driving through
neighborhoods to look at Christmas lights, and watching my
first baseball game at the Nationals' stadium just a few miles
from here. These experiences, uniquely American, are not only
unforgettable, but a part of who I am today.
I learned very young that every aspect of my life would be
controlled by my status. I could not participate in my high
school's AP French exchange program, even though I was
president of the French club, because I could not leave the
country and guarantee a return. When I applied to colleges, I
was considered an international student even though I completed
1st through 12th grade in America. I had to answer questions
like, ``What can you contribute to our institution as a
resident from your country?'' I grew up in Seattle. Starbucks
was founded there. I didn't know how much more American I could
get.
I also could not qualify for any Federal or university
financial aid. Regardless, I worked hard, earned good grades to
get direct admission into my dream program at Moody College of
Communication's Journalism School, to pursue my long-term goal
of becoming a journalist so I could use my voice to bring
awareness to important issues.
My brother and I were forced to raise ourselves because my
mother was always working, not only to provide for us, but also
to retain our visa status. Due to this uncertainty and anxiety,
we both faced severe mental health issues, my older brother to
a worse extent. He should've been pulled out of school, given
proper medication and counseling, and at times I felt he
should've been institutionalized. However, as H-4 dependents,
we legally needed to be enrolled as full-time students to
remain in this country. Though my mother wanted to quit her job
and stay home with him, risking her job meant risking our
entire life here.
After college, he took the LSAT, in which he scored in the
98th percentile and got into some of the best law schools in
the country. We thought, if we cannot fight the immigration
system, maybe we can work to help change it. His goal was to
become an immigration lawyer and speak out for this group of
children that America cannot see or refuses to recognize.
However, the day before his orientation at the University of
Washington, he took his own life.
Our entire family was torn apart, and our worlds were
turned upside down. I flew home and went from writing a school
paper to his obituary in less than 24 hours. The most cruel
part of this tragic situation was that we were not even given
the proper time to mourn. Within 1 week, I was back in college,
and by the end of the month, my mother had to be back at work.
Once again, our visa status controlled our lives, even when
one of us was dead. I can only describe his life as simply
existing. Not living, but surviving. I'm 23 years old, I should
be excited about my goals, but I'm scared because I know
they'll be taken away from me by something I cannot control. I
got a full-time offer from a major news corporation in Houston,
a top ten market, but the same company who saw my potential
withdrew their offer the second they heard about my visa
status. Worst of all, being considered an alien, an outsider,
in the only place you know to call home, is a different kind of
pain.
Without a change, in 8 months, I will be forced to leave
not only my home of 20 years, but also my mom, who is my only
family left. Over 5,000 documented DREAMers face this every
year. Aaron, a nursing graduate, was forced to self deport last
summer in the midst of a pandemic. Rutha, a data analyst
student, was forced to self deport 2 months ago. Summer will be
forced to self deport in 4 months, even though her family has
legally resided here since she was a baby.
Members of Improve the Dream hope that one day everyone who
grows up in America can become an American citizen and fully
contribute to our country. Members of this Subcommittee can
make this a reality by passing America's Children Act, a
bipartisan bill that would permanently end aging out and ensure
that children like me, who are raised and educated with a
documented status, receive a clear opportunity to apply for
permanent residency. This bill would create a reality that most
Americans likely assume already exists. The Subcommittee should
also address root causes that lead to aging out, including the
green card backlog and the flaws in our system that allow for
lawful, long-term residence without any clear path to
citizenship.
Though the immigration system has constantly tested my
faith, I am thankful my mom brought me here. We are Americans,
and all we hope is to be recognized as that, to finally give
meaning to the lives that we have lived here so far. I hope you
can improve the dream for all of us. Thank you.
[The prepared statement of Ms. Rajakumar appears as a
submission for the record.]
Chair Padilla. Thank you, Ms. Rajakumar. It takes courage
to share your story. It's beyond moving. I know your mother is
with us today, and I want to thank her for her courage as well.
Mr. Melmed.
STATEMENT OF LYNDEN D. MELMED,
PARTNER AT BERRY APPLEMAN &
LEIDEN, WASHINGTON, DC
Mr. Melmed. Thank you, Chairman Padilla. Ranking Member
Cornyn, good to see you. Appreciate the opportunity to testify
today.
As the Chairman mentioned, my testimony is going to focus
on barriers to skilled immigration. If you ask any company in
any industry today where Congress should place its efforts on
addressing that problem, you will encounter something rare in
immigration debate: consensus. Almost all companies agree that
the lengthy green card backlog and related per-country limits
make it difficult to attract and retain high-skilled
immigrants.
When I joined the Government in 2002, not a single
employment-based immigrant, irrespective of nationality, had to
wait for a green card number. Two decades later, it is
estimated there could be as many as 1.4 million employment-
based immigrants in the backlog, and nationals of India and
China face decades long wait times. Compounding the outdated
numerical limits, hundreds of thousands of green card numbers
have been wasted because the agency was unable to use them
within the fiscal year. Last year, approximately 80,000
numbers--although I heard earlier, maybe more than 100,000
numbers--went unused. Halfway through the current fiscal year,
the data suggests the agencies will fall short again, perhaps
by an even bigger amount.
I'd like to pause on this point. Agency processing capacity
now has a larger impact on immigration levels and flows than
any legislation passed by Congress in the past few decades. The
agencies have legal authority to remediate prior shortfalls.
There's legislation that I know many Members here have
introduced and sponsored, and I encourage Congress to address
that issue.
Lengthy green card wait times have near-term and long-term
consequences for U.S. competitiveness. Knowing that they will
have to wait decades for a green card in the U.S., highly
skilled foreign nationals are increasingly taking their talents
to other countries, including Canada. Toronto now leads the 30
top tech markets for job growth in the U.S. and Canada, and
Vancouver ranks third. A key component of Canada's job growth
is its willingness to grant permanent residence to high-skilled
immigrants without delay.
Fifty-six percent of new immigrants to Canada will enter
through economic channels. In contrast, only 6 percent of legal
immigrants to the U.S. enter through economic channels. There
is, however, one essential way that the U.S. employment-based
system is superior. Our employer sponsorship model is very
efficient at aligning immigrant skills with a labor market,
which reduces the likelihood that the country will admit highly
skilled workers that end up underemployed.
As you heard earlier, the green card backlogs place
employees and their families in very difficult and heart
rendering situations. Many high-skilled immigrants from India,
including those who graduate from U.S. universities and work in
critical STEM fields, will face the choice of leaving the U.S.
or remaining on a temporary work visa for their entire life.
Those outcomes are inconsistent with our country's values, but
they also undermine our economic interest. The U.S. is losing
key employees and limiting the career progress of those that
remain in the system at a time when there is already a
shortfall and record unemployment, particularly in computer-
related occupations.
Furthermore, the children of green card applicants can age
out, as you heard earlier. There's little that I can add to Ms.
Rajakumar's powerful testimony, other than to validate that the
legal options for documented DREAMers are few and far between.
Finally, I wish to call attention to how the green card
backlog relates to processing delays at the agencies. High-
skilled workers in a backlog must repeatedly extend their
status and work and travel documentation, often for years on
end. The family of a high-skilled immigrant will file multiple
applications while waiting in that backlog. Today the
Government often takes over a year to process a simple
employment authorization document.
Not only does that processing time force business
disruption on thousands of companies and workers, but those
extra applications get added to a case processing backlog that
is really difficult to get your head around. In 2013, the
agency had 3 million pending applications. Today, that backlog
exceeds 9.5 million and is expected to grow. I raise this
because I'm often asked how the agencies can address processing
delays, and it is clear to me that the Government can't keep
doing the same thing as they did in the past and hire its way
out of the problem. Congress and the agencies should focus on
how immigrants move through the system and eliminate
unnecessary steps and bureaucracy.
In closing, I want to thank the Committee for calling
attention to this important issue. I outlined several policy
options for Congress and the agencies to consider, and I look
forward to answering your questions.
[The prepared statement of Mr. Melmed appears as a
submission for the record.]
Chair Padilla. Thank you, Mr. Melmed. Thank you to all
three of you for your testimony. Now questions from the
Committee.
A major failure of the U.S. immigration system is the
failure to consider the fate of the children of temporary visa
holders. While their parents have applied for green cards,
applications remain stuck in years-long backlogs. There are
currently over 250,000 children of long-term temporary visa
holders who are at risk of aging out from the protection of
their parents' status. These are individuals who, like Ms.
Rajakumar, have grown up in the United States, have contributed
greatly to their communities, and who are unmistakably
American.
For these documented DREAMers, as they're called, there are
almost no pathways to remain in the country after aging out of
their parents' visas. When they turn 21, they face the
impossible decision of leaving their families to return to a
country that is often completely foreign to them or living
undocumented in the shadows.
I introduced the bipartisan America's Children Act, which
would create green card opportunities for these children, and
fix this often overlooked inequity in our immigration system.
Ms. Rajakumar, again, thank you for sharing your story with us.
If I may, can you explain how the enactment of the bill--I know
you're familiar with it--how it would impact your life, and
what having a pathway to citizenship would mean to you.
Ms. Rajakumar. First and foremost, what comes to my brain
is that my mom and I would not be immediately separated.
Second, it would allow me to pursue my desired career path,
gain experience, and while these are tangible things I can
point out, the biggest thing it would do is allow me to build
my life here permanently and contribute to the place that I've
called home for 20 years without fear that it would be taken
away from me.
Chair Padilla. Thank you. Second question is for Mr.
Melmed. Do you think it makes sense for immigration system to
allow children to be brought here on their parents' visa,
raised and educated here, oftentimes for decades, but not have
a clear opportunity to become an American citizen because their
parents' green card petition is stuck in the backlog?
Mr. Melmed. Chairman, it doesn't make sense, and if I could
add a couple of additional points----
Chair Padilla. Make sure your microphone is on.
Mr. Melmed. Chairman, it doesn't make sense, and if I could
add additional points to that question is that the backlog that
they are experiencing was not contemplated by Congress
previously. Backlogs are not new to the immigration system. You
can say, in fact, that 70 years ago, there were backlogs in the
immigration system. Congress has, on multiple times, enacted
relief for children who are aging out. This particular group
that Ms. Rajakumar is part of was not considered because those
backlogs didn't exist at the time that Congress previously
considered this issue.
The second, very sympathetic factor about the situation
that they encountered themselves in is part of my testimony, is
that these backlogs didn't exist as recently as 2013. At the
time that the parents enter the country on the temporary work
visas, it wasn't like they could have known. None of us really
necessarily foresaw the explosion in those backlogs over the
ensuing decade.
As I did mention, Congress has wrestled with this issue
before. There's been various policy solutions, including in
some situations, freezing their age, and other times using a
formula to back out agency processing times to afford relief.
There are a few options for Congress to consider to provide
relief, and they can look at prior legislation perhaps as a
road map.
Chair Padilla. I share your observation, not just on this
particular dynamic, but more broadly. What's clear from today's
testimony is that our immigration laws are outdated and no
longer serve the purpose for which they were created. Reforming
our family, employment, and diversity visa systems would be in
the best interest of our economy and our communities. Professor
Legomsky, in your testimony, you highlighted several ideas to
help reform the system and reduce the harmful backlog.
I'd like to ask specifically about the idea of
reclassifying spouses and unmarried children of legal permanent
residents who are applying for family based green cards. Right
now, those individuals are subject to the arbitrary numerical
limits, but your suggestion would be to classify them as
immediate relatives, a category of relatives that is not
subject to the numerical caps. Professor, can you explain why a
fix to this category of family based petitioners would have
significant impact on reducing the backlog?
Professor Legomsky. Thank you, Mr. Chairman. I think my
strongest reason for feeling this would be a good fix just
focuses on who these people are in reality. As I mentioned
during my original remarks, these are people who petitioned for
their spouses--for their new spouses or their newborn babies
sometime after becoming an LPR.
I should explain that if you are admitted as an LPR, the
current law does allow you to bring with you your accompanying
spouse and under age 21, unmarried children. The problem is
that if you immigrate as an LPR and then you get married to
someone who is not a citizen, or then you get married to
someone and have a baby overseas, those children and spouse
fall into the 2A category rather than the accompanying
category. Although there currently is no wait as I mentioned,
there were very long waits before.
The reason I focus on who these people are is that, because
the petitions are filed typically soon after the event, we are
talking about separating newlywed couples and separating
parents from their newborn babies for the first several years
of their lives. My guess is that people of all political
stripes would recognize this to be a serious problem, a
particularly heartbreaking one. There are a couple other
practical reasons as well.
One is that, since the family members cannot come here
until their visa numbers come up, if the LPR wants to maintain
any semblance of a family life, what that person is going to
have to do is periodically and frequently travel overseas to
visit his or her family members, often at great disruption to
the person's job, often at great expense. Third, and I know
this will be a little more controversial, it seems to me that
when the waits do become this long, you're practically inviting
illegal immigration.
I want to be clear that I'm not advocating illegal
immigration. I'm simply calling attention to the reality that
human nature will have to be remade before newlywed spouses
willingly separate for years at a time at the beginning of
their marriage. Human nature will have to be remade before
parents willingly separate from their newborn babies for the
first several years the child's life. My guess is that most of
us in this room would not do so. These are compelling--
particularly compelling circumstances for the family sponsored
2As.
Chair Padilla. Thank you. Senator Cornyn.
Senator Cornyn. Ms. Rajakumar, it's nice to meet you. I
hate for it to be under these circumstances. I certainly am
sympathetic to your conundrum and those others like you that
have aged out of the H-1B system. I'd like to work with Senator
Padilla on the legislation he's introduced to come up with a
solution.
I'm very sympathetic to not only your situation, but for
the other immigrants who've come here as children, known
sometimes as the DREAMers, sometimes as DACA recipients for the
Deferred Action on Childhood Arrival memorandum that President
Obama issued 10 years ago, which continues to be caught up in
litigation, which is a reason why that sort of executive action
is a bad way to do immigration reform. I voted for a bill that
contained other elements, maybe, sure, but which provided a
pathway to citizenship for 1.8 million DREAMers or DACA
recipients. Unfortunately, it failed in the Senate, which has
been the story since I've been in the Senate.
We, Congress, has never been successful in getting an
immigration reform bill to the President's desk for his
signature since I've been here. I think that should be an
embarrassment to us all. Mr. Melmed, let me ask you two
questions.
First, is the problem of H-1B dependents aging out a
symptom of greater underlying problem with our immigration
system, in your view?
Mr. Melmed. Ranking Member Cornyn, absolutely. You know,
these are, for the most part, immigrants who have already
established to the Government that they are eligible for a
green card. They have--their employers have already gone
through a multi-year process to establish that there's no
qualified and available U.S. workers, their employers have
repeatedly sponsored them for work visas, showing an ongoing
need, and their communities and their employers have invested a
huge amount in them. The sole reason that they are aging out is
because they are caught in that green card backlog, and it
falls most heavily on Indian nationals who are limited by the
per-country 7 percent limit.
Senator Cornyn. Is the America's Children Act consistent
with the approach Congress has used to address these problems
in the past, in your view?
Mr. Melmed. When Congress--you know, even recently as last
week with EB-5, Congress historically has taken--well, there's
been--excuse me, let me back up. There's been consensus to
protect children when this has been brought to the attention of
Congress, so I'll start with that. The solutions that Congress
has pursued in the past have generally focused on either--I use
the term ``freezing'' the child's age at a certain date in the
green card process, so even though the child will sometimes be
in their 20's or 30's, they're still for immigration law
purposes considered a child. Other times, the relief utilizes a
formula to ensure that they just back out the amount of time a
case was pending with the Government, which can sometimes, of
course, measure years.
What they didn't do is necessarily create a different path
to a green card. What I mean by that is that the children
continued to ride along as derivatives to their parents' green
card application, as opposed to going out onto their own
application for a green card. Those are just different policy
decisions. Both should be considered, but you're correct, in
the past it was done as where they stayed as derivatives to
their parents.
Senator Cornyn. Assuming that we can come up with a
bipartisan response to this particular problem that Ms.
Rajakumar's situation exemplifies, it would require, of course,
the Judiciary Committee as a whole to mark up a bill, and then
Senator Schumer to bring it to the floor, as the Senate is
currently constituted.
I know Senator Tillis and I previously had requested, when
it came to the larger group of DACA recipients who'd been
caught up in litigation for the last 10 years, we've requested
that the Chairman put a bill in front of the Judiciary
Committee so we can vote on it, amend it as appropriate, and if
it gets a majority vote, then make it available for floor
action. Unfortunately, that has--that has not happened.
Mr. Melmed, let me ask you about visa overstays. What role
do visa overstays play in terms of illegal immigration in the
United States?
Mr. Melmed. I apologize, maybe at one point I could cite
the numbers off the top of my head, but it's a significant
percentage. Historically, it's been over 40 percent are visa
overstays. I hazard a guess that that number is higher over the
past few years as a percentage of the undocumented immigration.
You know, there's been efforts throughout the years to improve
entry-exit tracking and to have a better sense of who has
overstayed their lawful status. I think that the tools that are
available to the agencies today are different than they were
back in 1996, which is really the last time Congress tried to
tackle the question of overstays, and it's probably ripe now
for review to look at that question.
Senator Cornyn. Thank you.
Chair Padilla. A note before recognizing Senator Durbin,
the American Children's--America's Children Act bipartisan
basis introduced includes a provision to freeze their age at
21, would also give work authorization. The main benefit of the
American Children's Act would be it creates an opportunity for
the children who are raised and educated here to apply for a
green card, and we should do what we can to help them. Just
wanted to add that piece of information as we're talking about
the proposed act. Senator Durbin.
Chair Durbin. Thank you very much, Mr. Chairman. Ms.
Rajakumar, I assume that is your mother sitting behind you?
Ms. Rajakumar. Yes. It is.
Chair Durbin. She's a remarkable person.
Ms. Rajakumar. Definitely.
Chair Durbin. That she would want to protect you and your
family and go to these lengths says a great deal about you.
Thank you so much. When will she receive a green card? Does she
have a date?
Ms. Rajakumar. Actually, shortly after I aged out of the
application, my mother did receive her green card. Which is
why, if I was forced to leave in 8 months, we would first and
foremost be separated. While she may have the opportunity to
come visit me from time to time, our lives would be in
completely separate places.
Chair Durbin. Of course. Mr. Melmed, our omnibus bill had
more money for processing, which you raised. I think is a valid
point. Wouldn't you agree that, unless we get to the heart of
the issue in terms of the number of green cards, that we are
going to continue to run into issues even if we are efficiently
processing applications?
Mr. Melmed. Absolutely, Senator Durbin. At this point in
the process, for an Indian national, the agency processing
times are checked with our firm before appearing. The overall
green card process is still measured in years, in terms of
agency processing. The issue that their family ran into is tied
solely to the lack of green card numbers.
Chair Durbin. It's not just a matter of appropriating the
money. We've got to do something.
Mr. Melmed. Yes, sir. It's up to Congress.
Chair Durbin. That's an honest appraisal, thank you very
much.
Mr. Legomsky, thank you for acknowledging the obvious. We
are dealing with real lives here. We can write laws trying to
condition conduct, and we know in our own personal experience,
newlyweds want to be in the same household. Families want to be
close to one another. There's nothing wrong with those
instincts. In fact, we reward them in many places in the law.
But in immigration law, we challenge them way too often. Thanks
for your service.
Mr. Chairman, I'm glad that Senator Cornyn has returned. I
have a bill called the RELIEF Act which goes after the green
card issue and aging out children. You have a bill which I've
cosponsored, America's Children Act. I want to accept the
challenge that Senator Cornyn has made. I want Senator Tillis
to be in on this conversation, because he and I have talked
about this too.
Let's put a bill before this Committee. Let's see what
elements we can agree on and put it before this Committee.
Let's test--Full Committee. Let's test whether or not we can
expand it in certain directions. I have Members from your side
of the aisle, Senator Tillis, coming up to me--not a great
number, but some--saying, ``Am I going to get a chance to vote
on DREAMers in this year?'' I haven't been able to say anything
to them one way or the other. I want to say something to them.
I want to give them that chance, but I think we have to test,
in the Judiciary Committee, whether we can put together a
bipartisan effort that can make it to the floor so we can
implore McConnell and Schumer to give us our chance.
There are just too many people like Ms. Rajakumar, whose
lives are hanging in the balance. I don't want to be guilty of
not trying. Mr. Chairman, I would want to join with you,
because you've been an amazing leader on immigration in the
short time that you've been with us. Let's do that. Let's
decide what is acceptable and then test whether other things
can be added to it and bring something to the floor. Let's not
go another 32 years without a bill.
Chair Padilla. Thank you, Senator Durbin. Senator Tillis.
Senator Tillis. Thank you, Mr. Chairman, Chair Durbin, I
appreciate you saying that too. I think that's the best way for
us to get the work done. A few years ago we had two bills on
the floor that came very, very close. We had a historic number
of Republicans voting for a path to citizenship for the DACA
population. We almost got where we needed to be on addressing
some of the border security issues. We can, I think, dust that
off and come up with something productive. You know, I, for
one, would like for this to be the Congress where we address
the DACA population that we also address some of these guest
worker programs and green card issues, which, to me, I lived
firsthand.
I got exposed to the H-1B process in my job as a partner at
Pricewaterhouse. I've tried to tell anyone who thinks that we
just need to find more computer scientists, more data analysts,
more people with advanced degrees from the U.S. population,
that they need to wake up and recognize that if we want our
economy to continue to grow, if we want to continue to build on
this great economy, that we've got to look to legal immigration
as a critical part of fulfilling our workforce needs and really
growing our innovation economy. Mr. Melmed, you were chief
counsel at CIS, right?
Mr. Melmed. Yes, sir.
Senator Tillis. It seems to me that they are working on
technology that existed largely before Myspace existed. If--I
mean, just based on your business perspective of that
operation, the lack of electronic systems, it just seems like
there's not going to be enough oil in the gears of CIS to even
just process the current backlog. For people like me, who would
like to see more going through, that they're going to have to
really modernize, and we are going to have to make the
investments to allow them to do that. Do you agree?
Mr. Melmed. Absolutely, Senator. I know my colleague,
Professor Legomsky, also supported the Agency as they were
wrestling with this after me. Being on the outside now, it's
pretty phenomenal the way technology is transforming business.
There are some positive signs out of the immigration agency
this year. They've now been running the H-1B registration
system as an online tool for a couple years, and that's gone
well and successfully. They're starting to do more online
payments, but that gives you an idea of how far they are behind
the private sector in terms of case management.
Senator Tillis. Wow, online payments.
Mr. Melmed. It's still a paper-based process and very slow.
Senator Tillis. You know, I also agree, Professor, that
when you build--and I, you know, I've got lifelong friends
that, back in the 1990s, brought on as H-1B visa workers, and I
saw firsthand that connection to family members as they--these
were some younger, freshly out of graduate school or with a
PhD, building a life and building a family, getting caught up
in all the things we're talking about here. That's why we do
have to look at it. Because it's actually a drain and a
distraction on the professionals. It actually undermines
productivity and their quality of life, and I think that we do
have to look at it through that lens.
Mr. Melmed, are you familiar with the Preserving Employment
Visas Act that we proposed?
Mr. Melmed. I'm familiar with it, yes, Senator.
Senator Tillis. Does it make sense conceptually that if we
have all these unused visas, we have 7 million, 8 million plus
job openings, that that's at least going to take a portion out
of that pressure that we have today?
Mr. Melmed. It does, Senator.
Senator Tillis. I also think that I've heard in several
hearings now that we're tracking a lot more entrepreneurs. A
lot more new businesses have opened up. I think the COVID
pandemic has made people either pursue dreams that they had on
the shelf or just pursue other ways to make an income. They may
never be going back to those jobs. Aren't we really undermining
our ability to grow the economy and get back to a post-COVID
kind of performance if we don't look at these issues?
Mr. Melmed. We are, and I would note that immigrants are--I
saw the statistic--25 percent more likely to start new
businesses. Hundreds of thousands of high-skilled, professional
workers can't leave their employer today. Otherwise, they
jeopardize their green card application. Both shortening that
time period and allowing them to get their green card and then
go out and start on their own, or creating other opportunities,
are all going to boost the economy.
Senator Tillis. That, you know, I think, just back on
DACA--why I was so glad to hear what Senator Durbin has
proposed. We did a lot of research on people who would be
qualified through the DACA program. If you were to take a
cohort of, depending upon the estimates, of 1.8 million to 2.2
million that would be eligible for the program, about 700,000
who had enrolled in it. There are extraordinary people. They
tend to have higher levels--they're either engaged in
education, gainfully employed, serving in the military.
I mean--for anyone who would have a philosophical problem
with a path to citizenship for that population should probably
do their homework because I actually think it's a group of
people that we should figure out a way to solve that problem. I
do also believe, Mr. Chairman, the only way we're going to
solve it is to have a broader discussion about some of these
other things that I believe that--we can ultimately put a
package together and make significant progress, and I hope that
progress is made in this Congress. Thank you, Mr. Chair.
Chair Padilla. Thank you, Senator Tillis. I just want to
compliment you on your effort, as well, on the Preserving
Employment Visas Act, which would represent a great step
forward in reducing the employment-based backlog. After today,
I'd love to work with you to see if we can incorporate some of
the relief to the family based backlog that we're talking about
as well. Next is Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chair. Thanks
for your great leadership here, and all the Senators. We have
an all-star cast of people that have worked on this issue,
including the Chair, Senator Tillis and Senator Durbin, Hirono,
and Blumenthal.
I have cared a lot about this for a long time. I've cared a
lot about it because my State is the home of so many refugees
and immigrants. We have the biggest population of Somalis, the
biggest population of Liberians, second biggest of Hmong, and
we also have workforce issues right now. It is both where my
heart is, but also where my head is when it comes to our
economy throughout our State.
Our unemployment rate is very, very low in Minnesota, way
below the national average. We have traditionally, because of
bringing in immigrants, have been able to maintain one of the
strongest economies in the country, which includes one of the
highest per capitas of Fortune 500 companies.
I'll start with you, Mr. Melmed. In your opening statement
you discussed how the U.S. is falling behind. I think about
this all the time. When we have job openings, we can't fill
them with various skill levels of employees. I literally go
into companies, and I think about it, because we talk about
apprenticeships in workforce and then I always say, what's the
most immediate thing we can do to shake this up? It's
immigration reform. It's visas. It's all different things to
create pathways to citizenship. What do you think--what
policies do you think have the most detrimental effect right
now on the ability of American companies to attract and retain
top talent?
Mr. Melmed. Senator, I would start with, one, maximizing
the immigrants who are already here. What we hear from our
clients and companies is that they have employees who are
caught in the green card backlog, and that limits their
progress. It limits the roles that they can take on. As I
mentioned just a few minutes ago, it limits their abilities to
go out and create new enterprises. The green card backlog and
per-country issues, those are already here. I'd start with
that.
The other issue you hear about, I suspect, is from
companies who look to hire out of U.S. universities. Such a
high percentage of graduates, particularly in STEM fields, are
in computer-related occupations. If a company today asked me,
right now, they have a top candidate out of a U.S. university
that they want to hire and sponsor for a work visa, the
earliest that individual could start would be not this October,
but the following October.
Senator Klobuchar. Exactly. I've found it's even, for some
of our smaller companies, it's harder to get in line to get
these employees because they may not have quite the structure
to pursue the whole thing. Very good, thank you.
I'm going to turn to a bill I'm working on right now for
our Afghan refugees. We're taking in a number of them in
Minnesota, and this bill would provide a pathway to permanent
legal status for Afghan refugees who were evacuated. I guess
I'd ask you, Professor Legomsky, what should we be doing for
these refugees and for others in order to--who are facing long
waits and processing times, and why is it important to change
that?
Professor Legomsky. Thank you for that question. I think
your solution is exactly the right one. We should be providing
a path to lawful permanent resident status. I think that the
situation of all refugees is compelling, but in the case of the
Afghan refugees, there are more reasons still. The big one, and
the obvious one, is that these are folks who, at great risk to
their own lives, have assisted American civilians and American
military personnel in Afghanistan. With all the trauma they
have already been through, we don't need to superimpose the
additional trauma of not knowing whether, at any moment, they
will suddenly be picked up and returned home.
For their children, the situation is probably even more
dire, because they have less understanding of what is going on.
For their older children, the awareness is even greater. A path
to permanent resident status, I think, is the best thing we can
do at this point.
Senator Klobuchar. Mr. Melmed, one other thing I wanted to
note--and thank you for that answer. Foreign doctors who are
from other countries, but they are doing their medical--getting
their medical degrees in the U.S. and do their residencies.
Crazy situation where they have to go back to their home
country. We'd love them to stay. This is the Conrad 30 bill. I
now have 20 other co-sponsors, bipartisan. It's a bill that I
have with Collins, Rosen, and Ernst to try and continue that
program and make it even stronger. It's called the Conrad 30
because it is named after Kent Conrad, because North Dakota had
so many problems in retaining, as Senator Cornyn, another all-
star cast member of people who want to get immigration reform
done, knows, and so that would be very important.
Do you also think that we need to make the case--I always--
this is always one of my big things, trying to make the case. I
think businesses know it, but sometimes I think our citizens
need to understand that connection with businesses. Senator
Cornyn, Coons, and Murkowski and I did a bill to require the
Department of Labor to study the barriers that immigrants with
advanced training face in finding employment when you look at
our needs right now. Do you want to just comment briefly on
that? Then I've got to let my other colleagues take a shot
here.
Mr. Melmed. I'd be remiss if I didn't comment on foreign
physicians, as I'm a child of an immigrant foreign physician
who settled in Dallas, Texas. I think, historically, the United
States has been effective in identifying ways where there's
win-win opportunities. Bringing foreign physicians to serve
medically underserved areas is--has been done in the past, and
it's an important tool at our disposal, and Congress should
definitely continue to utilize that program.
Senator Klobuchar. I'll ask you a question on the record,
Ms. Rajakumar. Thank you. We'll get you one in writing so
others can go. Thank you.
[The information appears as a submission for the record.]
Chair Padilla. Thank you, Senator Klobuchar. Senator
Blumenthal.
Senator Blumenthal. Thanks, Mr. Chair. I join in thanking
you and the Ranking Member for your work, and especially on
this issue of enabling more of our communities and our
businesses to make use of foreign talent. It is one of the
really great strengths of our Nation that we are a nation of
immigrants. From all over the world, including Ukraine and
Afghanistan, possibly the two greatest recent sources.
I've been working very, very energetically to enable more
of our Afghan at-risk allies to leave that country. There has
been only a trickle after the initial surge of those who were
able to depart the country in the initial days of the
withdrawal. I am frustrated by the slow pace at this point and
continued lack of enabling of those individuals to leave the
country. They are a source of potential talent to us because
they are the translators, interpreters, guides, workers.
I'm wondering, Professor Legomsky, whether there's any
precedent in recent history for enabling that kind of
population to go from temporary protected or parole status, as
they are now, with the sword of Damocles over their heads very
shortly, actually, having to leave the country, to deal with
that kind of major part of the population in those numbers.
Professor Legomsky. I can't think of a specific example in
which Congress has adjusted a large group of people from TPS
status directly to either refugee or lawful permanent resident
status. There's certainly, however, been many executive actions
in which former Presidents have allowed particular groups of
those who face compelling humanitarian needs to be paroled into
the United States.
One thing I will say about TPS is that, sometimes the
objection you hear to making their status permanent, is that
TPS was meant to be only a temporary program. I take that
objection seriously, but my own view is that, whatever the
original purpose of the admission of a particular group,
circumstances change. Sometimes for humanitarian or even for
interest--reasons of national self-interest, it makes sense to
adjust that population. I'd be hard pressed to think of a group
more deserving of that kind of treatment than the Afghan
refugees who have been so helpful to us.
Senator Blumenthal. As you say, they've put their lives on
the line for us, our troops and our diplomats, in Afghanistan.
They did it because they love this country, because they value
freedom and democracy, and they were willing to put themselves
and their families at risk to serve us. We have a moral
obligation here that transcends any self-interest, I think.
You mention executive actions by Presidents--former
Presidents. Can you give me a couple?
Professor Legomsky. I was afraid you were going to ask me
that because my memory is starting to slip.
Senator Blumenthal. You can get back to me.
Professor Legomsky. Okay, I will. Thank you.
Senator Blumenthal. Okay. In my home State of Connecticut,
my office has seen the kind of backlog that's been described by
many of your colleagues--you're familiar with it--in
immigration processing times for pending applications. My own
case workers have seen I-765 employment authorization
applications waiting for months, literally months on end, and
that's the reason that I advocated for an additional $200
million in funding for USCIS as part of an effort to address
the backlogs. You may have answered this in part already, but
could you give me a specific to-do list with that money for
USCIS?
Professor Legomsky. Yes. I'm a little bit limited in what I
can say because it has been 8 years since I've served as chief
counsel, and I have to assume that at least some procedures
have changed. I will say that, in all honesty, during my time
there, it's not as if I noticed lots of obvious inefficiencies
in the way applications were being processed. My own view is
that it's a positive thing that Congress, I believe for the
first time for this fiscal year, has supplemented USCIS
revenues with appropriations of its own. Normally, it's
reliant--USCIS is reliant solely on the fees provided by the
applicants themselves.
In addition to that, nobody can be against constantly being
on the lookout for ways to enhance efficiency. To put this
question in perspective, I think that both increasing
efficiency and supplementing funds--both of which I count as
positive steps--alone would produce just a small drop in the
bucket. The big problem, and Senator Durbin has alluded to
this, is that Congress has to act by dramatically raising the
caps for people. That's where the big gains are likely to be
made. Until that happens, I think efficiency gains will get us
only marginal improvement.
Senator Blumenthal. Would you agree, Mr. Melmed?
Mr. Melmed. I do agree with Professor Legomsky. I think
until there are some efficiencies through digitization that
Senator Tillis mentioned, and those would be measured in
percentages, not major levers to reduce, I think the issues
that we've talked about in terms of green card backlog, I
just--if I could highlight the employment authorization
document delay that your constituent services teams are
wrestling with day in and day out. That's a backlog that's just
going to continue to increase. As I mentioned, you can't hire
your way out of that. You've got to somehow reduce the number
of pending applications.
This administration has, to their credit, lengthened the
validity of those documents, and that's helped a little bit but
obviously not enough. Some of those bigger levers need to be
pulled to bring that processing time down.
Senator Blumenthal. It doesn't speed it. It just lets more
people wait in line for longer periods.
Professor Legomsky. Correct.
Senator Blumenthal. Thank you. Thank you--thank you all for
being here today.
Chair Padilla. Thank you, Senator Blumenthal. Senator
Hirono.
Senator Hirono. Thank you, Mr. Chairman. I'm glad that
Senator Durbin acknowledged the presence of Ms. Rajakumar's
mother. I want to extend to you a very special aloha. I
represent the State of Hawaii, and I too had a very courageous
mother who brought three children to this country to create a
better life for us. I am the only immigrant serving in the U.S.
Senate right now. A special aloha to you.
Now, there is consensus among Democrats and Republicans
that we have a broken immigration system. When you look at the
over 11 million undocumented people who are here, we have over
800,000 DREAMers who are actually signed up, with many, many
more who could qualify. You have the undocumented DREAMers,
maybe 250,000 of them. You have all the people stuck waiting
for their visas and practically in the--well, hundreds of
thousands.
There is agreement that our system is broken. If you start
with the proposition that we're going to need to do some sort
of solution, come up with some sort of solution to the border
situation and that is how you were going to start immigration
reform, then we're not going to get very far. That's one of the
major reasons that we have not gotten very far since 2013, when
we actually managed to pass a bipartisan immigration bill that
I thought was very comprehensive. It wasn't all that it could
have been, of course, but immigration is screwed up in so many
different areas that you hardly know where to begin.
As I'm sitting here listening to the testimony, Dr.
Legomsky and Mr. Melmed, you both have been working on
immigration issues for a long time. Ms. Rajakumar has lived it.
If we were to put the two of you in a room and told you guys to
come up with areas of agreement for what we can do with our
broken immigration system, do you think you could do that? Do
you think you could come up with something that we could work
on?
Mr. Melmed. I feel like that might be the toughest question
that you've sent our way.
Senator Hirono. Because if you can't, how can you expect us
to do it?
Mr. Melmed. Honestly, I think the Professor and I would
disagree on a number of things. I think we would both be well
intentioned, and I think we would both be committed to roll up
our shirt sleeves and get something done. I mean, it's an area
where I think we would agree these are hard issues to wrestle
with, and everyone on either side is going to have to make
compromises.
Professor Legomsky. I very much agree. I have found Mr.
Melmed to be an extremely reasonable person, especially given
his comment that I would be an easy person to deal with. It's
true that there are many, many areas in which I think we would
easily find agreement, some in which we might find agreement
with a little bit of fine tuning, other areas in which I'm sure
we would disagree. The real question is whether we could come
up with a plan that we both agree on and that would pass both
houses of Congress. I think that would be a tougher issue,
because I know there's a wider diversity of opinion within the
Senate and as well within the House.
Senator Hirono. If you were to leave Congress out of it and
we asked you to come up with something that's reasonable that
addresses the huge backlog that we have and, you know, all of
the myriad problems that you have testified to, I would think
that you would be able to come up with some reasonable areas
that would enable us to go forward.
Every time the word immigration comes up, you know, there
are Members--mainly, I would say, of the Republican party
because I feel like I can say that since my friend there,
Senator Cornyn, has castigated the Democrats. Really, there are
a lot of Republicans who run for the hills. At the same time, I
know that our Ranking Member really wants to get something done
in this area, and I--after hearing this and talking with my
colleague to my left, the Chairman of the Committee, I feel as
though maybe we can get something done.
In the area of who should have some sort of preference to
come into our country, Mr. Melmed, you said that we should
enable people with certain skill sets, probably in the math and
science areas. We certainly need workers in those areas. I
would just like to mention to you and this body, when we worked
on the comprehensive immigration reform, there was a
preference, I would say, for people with those kinds of
backgrounds and experiences to have preference to come into our
country with visas.
We have a huge need for domestic workers, for healthcare
workers, etc. These are not people with science and technology
backgrounds, and yet with the kind of preference that was in
the original comprehensive immigration bill, a lot of women
would have been left out of our immigration system. They would
have been left out of getting visas on their own. They would've
had to marry, usually, the guy who had the STEM backgrounds and
experiences. I'd just like to note that, because we have huge
needs for all kinds of workers in this country. I would not
want us to get--to just focus on the people with the so-called
advanced degrees and those kind of experiences.
Mr. Chairman, thank you very much for holding this hearing.
My hope is that we can come up with something. In fact, I
welcome the two of you to suggest something to us based on the
testimony that you provided today. Thank you.
Chair Padilla. Thank you, Senator Hirono. We had, a few
minutes ago, Senator Booker online to participate, are you
still there, Senator Booker. If you are, you're next for asking
questions, and if not, then we will proceed with the second
round of questions for Members who are with us. I want to come
back to Ms. Rajakumar who, again, embodies the issue, one of
the many challenges of our immigration system before us.
I asked you previously what it would mean if the America's
Children Act were to pass, but I want to go retrospective a
little bit. How would your life have been different over the
last few years if you have--had been able to get a green card
already? As you answer that, you can share with us also, would
you describe what would happen in your life and your family if
you had to leave the United States?
Ms. Rajakumar. Thank you for your question. I think that
permanent residency would have benefited me in many ways at
several points in my life, but specifically over the past few
years, especially once I turned 18. It would have given me the
independence that I so badly desired. For example, I really
wanted to be able to work when I was in college.
The out-of-state tuition--as I mentioned in my testimony,
children like me don't qualify for any university or Federal
financial aid, so the $70,000 of out-of-state tuition that my
mom took upon herself was an exorbitant burden on my family.
She jeopardized our only home, and my inability to support
myself due to my inability to work was just an extra stress on
the family, not even being able to take care of my personal
expenses.
Then, in addition, in 2019, if I had my permanent
residency, I would have loved to have been able to take off a
semester or even a year off school after my brother's passing,
and really mourn and process and heal and be there for my
mother, and had the confidence that I could have picked up my
education once again when I felt ready, without any impact on
my future.
If I had to leave, first and foremost, after being
separated from my mother, it means returning to a country that
I've only ever been to twice before, a place where I have no
place to live, no means of transportation let alone a license,
a career, or support system, because apart from my mother, even
my most immediate extended family reside in the U.S., so it
would quite literally mean starting over completely from
scratch.
My only other option of staying here would be to apply for
an H-1B application, which would only further my work visa
sponsorship and maybe me give me a couple more years, but at
the end of which I will once again face self-deportation. The
problem, again, with these applications type is they're fully
luck based. They're pure lottery. It does not take into the
account that I have--the years that I have spent growing up
here, and even if I were to be lucky enough to get an H-1B
application and then be sponsored for my green card through my
employer, as my mom did over a decade ago, I would once again
fall toward the back of the line that she was in and the line
that I aged out of. Neither option is very viable, in my
opinion.
Chair Padilla. Very real circumstances. I want to focus
back on the employment-based immigration system for another
moment. The number discussed as to numerical limit for
employment-based green cards is 140,000. We've referenced that
figure earlier in the hearing. That number does not actually
represent the number of people who petitioned for an
employment-based green card. Spouses and children of immigrants
who accompany an employment-based immigrant actually count
against the 140,000 cap. I mentioned that in my opening
statement. Therefore, less than half of the 140,000 employment
green cards actually go to immigrants selected for employment
reasons.
A question for both Mr. Legomsky and Mr. Melmed, can you
discuss how exempting spouses and children from the cap would
improve our immigration system?
Professor Legomsky. It would have the same kind of
beneficial effect, with slightly different numbers, as some of
the other bases for increasing the total cap, such as
increasing the base number, recapturing unused visas,
eliminating the deduction for immediate relatives, and so on.
I see a proposal to exempt the dependents from the cap as
being in that same vein, and I think they would all have the
same benefits. They would greatly shorten the waiting times for
people who, after all, are going to be admitted at some point
anyway. It's just that this would allow them to be admitted
sooner rather than later, thereby helping the employers who
need their essential labor right now, rather than forcing them
to wait in the future.
Chair Padilla. Mr. Melmed.
Mr. Melmed. I agree with Professor Legomsky. I don't have
anything else to add other than--you can see the snowball
effect, that when you have a 10-year backlog for a green card,
people will marry, they will have children. Those folks are
then being added to the line, so a little bit of an explanation
of why that backlog is increasing even while doing nothing,
just by nature of families growing.
Chair Padilla. I think it speaks to both the backlog and
the effort to address the backlog at the same time, the purpose
for which this was intended to impact employment and the
economy. When a majority of the numbers are not the sponsored
entity but spouse and children of, that's limiting the
employment and economic contribution side, so it makes sense to
me. Senator Cornyn.
Senator Cornyn. Mr. Melmed, I mentioned Senator Tillis's
bill, Preserving Employment Visas Act, which would recapture
92,000 employment-based green cards that went unused. I suppose
the answer to this question is obvious, but if we recaptured
92,000 employment-based visas, that would reduce the backlog
accordingly, correct?
Mr. Melmed. It certainly would, Senator.
Senator Cornyn. Talk about the impact that that would have,
what beneficial impact would it have on children who are in Ms.
Rajakumar's situation, if we're able to recapture those green
cards. Would it help those who might otherwise age out of the
system?
Mr. Melmed. Yes, Senator. You would shorten out the wait
time for a green card, and it wouldn't, of course, protect
everyone from aging out. It would certainly reduce the
likelihood and chances of children turning 21 before the
parents get a green card.
Senator Cornyn. Okay. To Senator Durbin's point, lest
people think that we all disagree on--about everything, I
mention the bill that he and I partnered on, Healthcare
Workforce Resilience Act. This would capture 40,000 employment-
based immigrant visas for doctors and nurses. If there's one
thing I hear from my hospitals in Texas, it's the shortage of
nurses because of the burnout factor associated with COVID-19
and the like. Now, hospitals are having to pay incredible
multiples of what they ordinarily would pay to nurses to
contract with companies that basically will provide the nurses
at a given price.
Mr. Melmed, you stated that more than 2.6 million migrants
are currently employed as healthcare workers, and as I
mentioned, about 30 percent of the physicians in Dallas and
Fort Worth are foreign born. What impact would this have, if
we're able to recapture those 40,000 employment-based visas for
doctors and nurses? What impact would that have on the public's
access to healthcare?
Mr. Melmed. Thank you for highlighting that fact. It is an
industry that's, as they say, overrepresented with immigrants,
and they're critical to that industry. Addressing the green
card backlog would do two things for them. Some of them are
already here and, as we've talked about at length, are caught
in that backlog and therefore unable to change roles, progress
in their roles, start new enterprises. There's also others in
the healthcare industry who come straight to the United States
on a green card. By making additional extra visa numbers
available, you would actually increase the number of workers,
immediately. That would have a near-term impact.
Senator Cornyn. Thank you. Thank you, Mr. Chairman.
Chair Padilla. Thank you. Just as a follow-on to that, Mr.
Melmed, I want to recognize from your written testimony
submitted that a recent report by the Niskanen Center indicates
that, if the Federal Government recaptured 231,000 unused
employment-based green cards, the policy would add $216 billion
to GDP over 10 years. If it recaptures 940,000 unused
employment-based and family preference green cards, the policy
would add $815 billion to GDP over 10 years. Further makes the
point. Senator Durbin.
Chair Durbin. Let me just add a couple things very quickly,
and I thank the panel for their patience. The Tillis bill,
Senator Cornyn cleared the hotline on the Democratic side, but
there were two on your side who objected. They're both Members
of this Committee. At least one of them has said he doesn't
want one more immigrant in this country. That's the problem.
We're going to--if we're going to do anything, we'll have to do
it the old-fashioned way. We're going to need 60 votes. We're
going to have to find something to come out of this Committee
in a bipartisan fashion that has a chance of 60 votes on the
floor. That may limit our scope, but I hope it doesn't. I'm
willing to undertake that. I think what we've heard today ought
to be a compelling reason to start that conversation and see if
we can----
Senator Cornyn. I would just say to my friend the Chairman,
obviously we pass things around here by unanimous consent, but
when we can't get 100 Senators to agree, then we vote them out
of Committee and we get them on the floor and get 60 votes for
cloture and we pass them. It may be necessary, because this--
immigration can be an emotional issue. Frankly, some of the
positions taken on either side of the aisle, I don't find make
a lot of sense to me.
I do think there's a core, certainly, of 60-plus Senators
who are willing to take up commonsense measures like this and
to pass them, if we can get a commitment to mark them up in
Committee and then on the floor. I just want to say publicly
how much I appreciate your willingness to take up and mark up
an immigration bill, particularly relating to a situation like
Ms. Rajakumar finds herself in, such as proposed by the
Chairman of the Subcommittee. I think this is something we
ought to be able to find the solution to, and maybe some of
these other areas as well.
Chair Durbin. Mr. Chairman, I want to acknowledge to you
and to salute the panel. You may have seen history in the
making, who knows. I always say the education of a Senator is a
daunting task, and a public declaration by a Senator that
they're actually going to try to legislate is almost historic
around here. Who knows, this may end well. I want to thank all
three of you, particularly Ms. Rajakumar. Your story is so
compelling. It really calls on all of us to get up and do
something, so I hope we can. Thank you for being here today,
all of you.
Chair Padilla. Thank you, Senator Durbin. Before moving to
a close this hearing, I'm going to take the Chair's privilege
and ask just one more question that I think is important to
raise today. It's going to be for Professor Legomsky. In 1996,
Congress passed the Illegal Immigration Reform and Immigrant
Responsibility Act. With that measure, Congress attempted to
create disincentives to come and remain unlawfully in the
United States. An individual who remains unlawfully present in
the United States for more than 180 days but less than a year
is barred from admission for 3 years. Those that are unlawfully
present for more than a year are barred for 10 years. The most
extreme case, if one re-enters after having been removed, after
being unlawfully present for more than a year, they're
permanently barred. Exceptions to these bars remain very
limited.
Professor, in your testimony, you advocated the repeal of
the 3-year, 10-year, and permanent bars. You said they create a
procedural Catch-22, whereby someone who otherwise qualifies
for legal permanent resident status has no place to apply for
it. Can you elaborate on that for a minute?
Professor Legomsky. Yes, and I apologize in advance that
this explanation will be a little bit on the nerdy side, but I
don't think I can avoid it. When a person has been unlawfully--
if a person is currently unlawfully present, then that, of
course, alone is already a ground for removal. As you have
indicated, these 3, 10 bars apply to people who have been
unlawfully present at some point in the past. My own view is
that they are inherently disproportionate to the nature of the
offense, even in general, given the desperation that drives
people to enter or to remain in the U.S. without status. The
particular procedural catch-22 that you referenced is as
follows.
Suppose you are a person who meets all of the substantive
eligibility requirements that Congress has set for becoming an
LPR. That is, you fall within one of the family categories, you
do not fall within any of the inadmissibility grounds, and
you've waited your turn in line, and now your priority date has
become current. You're at the front of the line ready to be
admitted. There is a point in your life at which you have been
unlawfully present.
You can't simply go to the U.S. consulate and get a visa,
which is the traditional route for becoming an LPR, because the
moment you step outside the country, you will now have
departed, and the unlawful presence plus the departure together
make you inadmissible for, in almost all cases, 10 years. The
visa will be denied on that ground alone. That would be okay,
if you could instead simply do the paperwork here in the United
States through the process known as adjustment of status. With
rare exceptions, you can't do that--I shouldn't say rare. With
an exception of only a minority, you can't do that either.
For one thing, you are statutorily ineligible for
adjustment if you have not been admitted or paroled. If you
entered the country without inspection, that alone would rule
you out. Even if you entered the country legally on a
nonimmigrant visa but then overstayed and became unlawfully
present in that way, okay, you can overcome the admitted or
paroled bar, but then you run into another obstacle. Because to
be eligible for adjustment, you also have to show that you have
been continuously, lawfully present--pardon me--you have
maintained continuous, lawful status in the United States since
your entry, which you would not have done had you overstayed.
To be fair, I should acknowledge an important exception.
That is that immediate relatives are exempt from the
requirement of lawful continuous status. Unless you are an
immediate relative who became undocumented only by reason of
having overstayed, as opposed to entering without inspection,
then you're not within any of the exceptions, and despite
having met all of the substantive eligibility requirements for
admission, you can't apply for it outside the country and you
can't apply for it inside the country. That's why I describe it
as a procedural catch-22.
Chair Padilla. Thank you very much. Enlightening for those
who are unfamiliar with that dynamic, and not very for the
many, many who have personally or know someone who is caught in
that catch-22.
Before we conclude, I want to move to enter a number of
statements into the record, including statements from Asian
Americans Advancing Justice, Americans For Prosperity, and the
LIBRE Initiative, American Families United, the Center for
Migration Studies of New York, CHIRLA, FWD.us, Improve the
Dream, NACS, the National Immigration Law Center, and the
National Venture Capital Association. Without objection, those
statements will be included, and the record for the hearing
will close 1 week from today.
As this hearing concludes, I do want to thank my fellow
Subcommittee Members and especially our witnesses for joining
us. I'm glad to see that we might've taken some steps forward
and made progress today. That's why we held this hearing, to
try to find pathways for progress and to improve this outdated
and overly complex immigration system. I look forward to
working with my colleagues on both sides of the aisle to move
the America's Children Act and other important legislation
forward in Judiciary Committee.
To just sort of capture the spirit of the last couple of
hours, we've heard overwhelming evidence that our immigration
system is broken, outdated. Visa limits are hurting our economy
and endangering workers. Enormous backlogs are separating
families, sometimes for years, sometimes for decades. Arbitrary
cutoffs are forcing children who grew up in this country to
leave their families and their only home.
We have a responsibility to fix all of this. Just think
about all the lives and stories reflected in the chart here
behind me. If you're a U.S. citizen with a sister in Mexico,
you're supposed to wait 224 years before she receives her visa.
That's the impact of the current backlogs. If your married
child is in the Philippines, he and his partner face a wait
time of 155 years. If you're an employer trying to hire a
Chinese worker with 2 years of training, your employee should
expect to wait 44 years before receiving a green card. Indian
workers with a bachelor's degree are expected to wait a
staggering 90 years.
These aren't wait times. They are de facto bans. It's past
time to make our immigration laws reflect reality, as well as
the current needs of our Nation. When we do so, that reform
will benefit everyone by reuniting immigrant families who can
help communities thrive. By inviting immigrants to join our
workforce, we can grow our economy for all. By welcoming
immigrants from countries with lower levels of immigration
through our diversity visa program, we contribute to the rich,
cultural fabric of the United States. By recapturing unused
visas, we can reduce employment and family based immigration
backlogs and add billions of dollars to our GDP, reunite
families and strengthen our economy at the same time. By making
sure any bill coming out of the America COMPETES/USICA
Conference includes immigration provisions, we can help build
our domestic STEM workforce and encourage startup companies to
establish roots here.
These reforms are especially important at a moment when our
workforce is aging and demand for visas is higher than ever.
America has a proud history of welcoming immigrants, and now is
the moment to recommit ourselves to that task. As Mr. Melmed
said in his testimony, by doing nothing, the United States is
going backward.
Although it's not a topic of this hearing, I want to
conclude by taking a step back and acknowledging a few recent
events. Right now, the people of Ukraine are enduring a brutal
and unprovoked assault by Russian forces. More than 2 1/2
million people have already been forced to flee their homes,
and that number seems to be growing by the day, creating the
largest European refugee crisis since World War II. America
must be a leader by example and protect Ukrainians who have
been driven away from their homes, just as we should be doing
for the Afghan evacuees who made it to our soil, as well as
Afghan refugees abroad.
At the same time, I urge the Biden administration and my
colleagues to remember the refugees who are waiting at our
border, kept out by the cruel and unnecessary Title 42 policy.
The administration made the correct decision to end Title 42
for unaccompanied children, recognizing that there is no public
health need to deny the rights of lawful asylum seekers. It's
past time to end this draconian policy for all the individuals
and families who come here to escape terrible persecution.
Colleagues, again, I ask that we recommit ourselves to
reflecting our values as a nation of immigrants. Thank you all
for your participation again here today, and with that, today's
hearing is adjourned.
[Whereupon, at 3:55 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Miscellaneous submissions:
American Families United......................................... 64
Americans for Prosperity & The LIBRE Initiative.................. 86
Asian Americans Advancing Justice (AAJC), statement.............. 87
Canaba, Ramon, Jr., statement.................................... 84
Coalition for Humane Immigrant Rights (CHIRLA)................... 112
Delich, Mark, FWD.us statement, March 15, 2022................... 116
National Association of Convenience Stores (NACS)................ 132
National Association of Manufacturers............................ 135
National Immigration Forum....................................... 138
National Immigration Law Center.................................. 143
Nation's Venture Capital Investors (NVCA)........................ 148
Poll from Survey USA............................................. 85
Removing Barriers to Legal Migration to Strengthen our
Communities and Economy....................................... 104
UnidosUS......................................................... 151
Improve The Dream, Collection of Stories from Members
https://www.govinfo.gov/content/pkg/CHRG-117shrg56622/pdf/CHRG-
117shrg
56622-add1.pdf
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